FIRST CONSTITUTIONAL CONVENTION IN WIS- 
CONSIN, 1846 



5&4 

.H74 



By FREDERICK L. HOLMES 



[From Pr®ceedings of the State Historical Society of Wiscons n, 1905] 



MADISON 
*) State Historical Society of Wisconsin 



IQO6 




ilSS. 



houK 



^7Y 



pui-:si;nti:i) isy 



FIRST CONSTITUTIONAL CONVENTION IN WIS- 
CONSIN, 1846 



By FREDERICK L. HOLMES 



[From Proceedings of the State Historical Society of Wisconsin, 1905] 



MADISON 
State Historical Society of Wisconsin 

1906 






fS. 



f' 



..V 



First Constitutional Convention 
in Wisconsin, 1846 



By Frederick L. Holmes 

In less than a century tJie forest-covered territory of Wis- 
consin has been transformed into a prosperous oommonwealtih. 
Yet in the early twenties, so remote was this region from the 
centre of population that the United States government, at the 
•suggestion of Dr. Jedediah Morse/ actually considered the 
policy of reserving the entire state' for Indian residence, and 
in 1823-24 a contingent of the Stockbridge, Oneida , and 
Brothertown^ Indians was removed hither from New York. 
About this time a description of the abundance of lead to be 
found in what is now southwest Wisconsin appeared in a St. 
Louis paper,^ and thereafter for several years population 
pressed thitherward from the southern states — Virginia, Ken- 
tucky, and Tennessee — by way of the Mississippi River 
and Kellogg's trail in Illinois. Lead mining developed into 
a prosperous industry; Galena was more of a commercial mart 
lor the interior of Wisconsin than Milwaukee or other lake 



1 Morse, Report to Secretary of War on Indian Affairs (New Haven, 
1822), appendix, p. 314. 

2 Wis. Hist. Soc. Proceedings, 1899, p. 162. 

3 Henry E. Legler, Leading Events in Wisconsin History (Milwaukee, 
1898), p. 166. 

[227] 



Wisconsin Historical Society 

ports, and Cliicago was scarcely known in that connection.^ 
At Green Bay had long been a sparse settlement of French habi- 
tants and fur traders." The remainder of the region was an 
unoonquered forest. 

With the close of the Black Hawk War in 1832, the prob- 
lem of settling Wisconsin took on a different aspect. Eastern 
papers published numerous descriptions by soldiers who had 
piassed through this country ;, of the beauty and fertility of the 
land.^ Pi-osident Jackson favorably mentioned the locality in 
his messages* to congress (1832-33) ; treaties were concluded 
with the Winnebago and Potawatomi for their removal beyond 
the Mississippi.^ The terror of further border forays thus dis- 
pelled from the minds of prospective settlers, land offices were 
opene<:l at Green Bay and Mineral Point in 1834,® and emi- 
grants from the Eiast surged in through tlie port of Milwaukee.'^ 

This second migration scattered agricultural communities of 
the jSTew England type throughout the southeastern part of 
Wisconsin. A decade later, in the early forties, began the 
migration from beyond seas^ of Germans, Scandinavians, and 
other Teutonic and Celtic nations, whose influence was to have 
a profound effect on the future destinies of Wisconsin. Thus 
by 1840 the four chief elements in Wisconsin settlement had 



1 O. G. Libby, "Significance of the Lead and Shot Trade in Early Wis- 
consin History," in Wis. Hist. Colls., xiii, pp. 293-334; and R. G. 
Thwaites, "Notes in Early Lead Mining in the Fever (or Galena) River 
Region," in ibid., pp. 271-292. 

^George Gary, History of Fox River Valley (Oshkosh, 1898), p. 247. 

3 John A. Wakefield, History of Black Hawk War (Jacksonville, 111., 
1834), p. 66. 

■* James D. Richardson, Messages of the Presidents (Washington, 
1896-99), ii, p. 603; iii, p. 321. 

5William Salter, "Henry Dodge, Governor of the Territory of Wis- 
consin," in Iowa Historical Record, iv-ix, xiii-xv. 

Wisconsin Blue-Book, 1905, p. 853. 

7F. J. Turner, '"Fur Trade in Wisconsin," in Wis. Hist. Soc. Proceed- 
ings, 1889, p. 62. 

sLegler, Leading Events in Wisconsin History, p. 207. 

[228] 



First Constitutional Convention 

arrived — the non-progressive French-Canadian about Green 
Bay; the early Southern immigrants from Missouri and the 
Southern states in the lead region; the New England and ISTew 
York farmers in the southeast; and the settlement of foreign- 
ers, democratic in nature/ chiefly located on the western shore 
of Lake Michigan. 

The agitation for admission into the union began soon after 
the territorial government was established in Wisconsin 
(1836). In 1838, ten years before Wisconsin was admitted as 
a state, Grov, Henry Dodge in his message" tO' the legislature 
advised that the question of state government be submitted to a 
popular vote. iSTo attention was paid to his recommendation, 
and tlie following winter he again renewed it,^ ouly to have it 
once more ignored. However, in 1841 a vote was taken ; the 
returns demuonstrated how little interest the people took in the 
naatter. Only 92 votes were cast in favor of a state govern- 
ment, with 41)9 against it.' Undaunted by defeat, the vote 
was taken a second time the following year, and again resulted 
in failure.^ Governor Doty now took up the question and in 
1843,*^ when public sentiment was again tested, 571 votes were 
cast in favor and 1,276 against a change of government. The 
scheme was publicly denounced as "Doty's pet hobby."' In 
1844 the question, again submitted to a popular vote, resulted 
in 1,503 votes for and 5,343 against the proposal.* The follow- 
ing year a bill for this purpose was defeated in the lower house 



1 Ernest Bruncken, 'Germans in Wisconsin Politics," in Parkman 
Club Publications, i, p. 226. 

-Journal of Council. 1838, p. 7. 

37(?., 1839, p. 8. 

*A. M. Thomson, Political History of Wisconsiti (Milwaulvee, 1900), 
p. 53. 

5 619 in favor of and 1,843 against a state government; see Moses M. 
Strong, Terr. Hist, of Wis. (Madison, 1885), p. 363. 

^Journal of Council, 1843, p. 274. 

■''Tenney and Atwood, Fathers of Wisconsin (Madison, 1880), p. 19. 

8 Strong, Terr. Hist, of Wis., p. 412. 

[229 ] 



Wisconsin Historical Society 

of the legislature. The opposition arose from the dread of in- 
creased expense under a state government., and was furthered 
by the stringent suffrage regiilation of the territory. Gradu- 
ally, however, the citizens became educated to the idea. 

Early in 1846 a wave of popular demand for irmnediat© 
statehood s^vept over the territory.^ Governor Dodge pre- 
sented the question at length for the consideration of the legis- 
lature.' This time the suggestion was refeiTcd to a special joint 
committee^ which rendered a favorable decision. Their report, 
written by Michael Frank,'^ was a detailed argimient on the 
benefits that would accrue from admission into the union. It 
stated that the average amount appropriated to the territory 
for all purposes did not eixceed $38,000 ; while the interest at 
6 per cent upon the proceeds of the sale of the 500,000 acres 
of land that the state would receive from the United States, 
together with 5 per cent of the net proceeds of the sales of the 
public lands in the state, would amount, it was conjectured, to 
about $55,000. But mercenary gain was not the only argu- 
ment presented. The advantages of a political nature were set 
forth, as w^ell as the benefits to be derived from the control 
and disposal of our school lands" and a land grant for a univer- 
sity. 

The committee report was accompanied by a bill providing 
for a choice of delegates to a constitutional convention, should 
a popular vote to be taken on the first Tuesday in April ap- 
prove the demand for state government ; also a plan for taking 
the census; for the apportionment of one delegate from each 



1 Petitions for state government, from Walworth, Racine, and Green 
counties, in Journal of House, 1846, pp. 37, 38, 40. 

■■^Journal of Council, 184G, p. 13. 

3Jbid, p. 32. Tliis committee consisted of Moses Strong, Michael 
Frank, Elisha Morrow, Benjamin H. Mooers, Orson Sheldon, and 
Thomas P. Burnett. 

ilbid. pp. 333-342. 

5W. C. Whitford, Eaucation in Wisconsin (Madison, 1876), p. 29. 

[ 230 ] 



First Constitutional Convention 

<?oimty for every 1,300 inhabitants, and for their election and 
the time for convening the delegates. It is interesting to note 
that a spirited debate arose over the suffrage article, which gave 
the privilege of ^'oting only to white males twenty-one years old. 
The New Elngland element^ attempted to have the word "white" 
stricken out, but failed in the attempt. However, the repre- 
sentatives of the foreign element succeeded in reducing the 
time necessary for naturalization to one year,' upon a declara- 
tion of intention to l)ecome a citizen. O'n January 30," the 
bill having passed both territorial houses was sent to the gover- 
nor, who signed it the following day,* thus making it a law. 
Meanwhile, Morgan L. Martin of Green Bay, territorial 
delegate from Wisconsin in the house of representatives at 
Washington introduced^ into that body (January 13, 1846) 
an enabling act authorizing the people of Wisconsin territory 
to form a constitutioai preparatory to admission into the union. 
Seven moutlis passed before the bill received more than com- 
mittee consideration. Congress had declared war on Mexico, 
and the veixed question of slavery extension and the Oregon 
boundary engrossed the representatives. Stephen A. Douglas, 
chairman of the comraitte'e on territories, championed an early 
admission of the ne^w state.*' But the much-mooted boundary 
question interfered. Wisconsin claimed the southern bound- 
ary line as fixed by the ordinance of 1787, and her delegate' 
succeeded in introducing an amendment^ which left the settle- 
inent of the boundaries of the proposed state entirely to the 
people of Wisconsin, at the constitutional convention. Final 
action on the bill in the house was delaved until June 10. 



1 Journal of Council, 1846, p. 94. 

2 Wis. Hist. Colls., xii, p. 314. 

s Journal of House, 1846 (bill 22 C), p. 208. 
*Ibid, p. 249. 

5 Cong. Globe, 29 Cong., 1 sess., xv, p. 196. 
^House Journal, 29 Cong., 1 sess.. 1846, p. 782. 
-Ibid. p. 921. 

[231] 



Wisconsin Historical Society 

Suddenly the intent of the amendment was discovered. John A. 
Rockwell, of Connecticut, spoke explaining its purport and 
declared the bill would suffer defeat unless the amend in out 
relating to the boundary was stricken out. 

The boundary dispute involved not only the southern but a 
portion of the northwest boundaiy, the territory of Wisconsin 
at that time claiming tlie whole northeastern part of Minne- 
sota, which would have given the new state an additional area 
of nearly 15,000 square miles.^ With strong argimients Mar- 
tin defended his amendment, based on the ordinance! of 1787 ; 
but when he saw that the sentiment of the house was adverse, 
he moved to have the bill indefinitely postponed." Fortunately 
the house voted his motion down, and proceeded to a considera- 
tion of the bill. The obnoxious amendment was stricken out, 
and the enabling act Avas passed.' 

The bill was sent to the senate June 11, and was reported 
favorably July 9 by James D. Wfescott of Florida, from the 
committee on territories. In August the measure was called 
up and passed witliout discussion, and on the next day was 
eigned by President Polk, being marked "approved" upon 
the senate journal four days later.* 

Long before a consideration of the enabling act for Wiscon- 
sin's admission was begun by congress, the Wisconsin territorial 
legislature had adjourned, leaving the question of state gov- 
ernment to be again submitted to a vote of the i>eople at the 
spring election. The i^etiinis on April 17, 1846, showed that 



1 Arthur J. Dodge, Wisconsin's Admission as a ^tate (Milwuakee, 
1898), p. 4; Thwaites, 'Boundaries of Wisconsin," in Wis. Hist. Colls., 
xi, pp. 486-494. 

^Cong. Globe. 29 Cong., 1 sess., p. 953. 

^House Journal, 29 Cong., 1 sess., p. 938. 

* Senate Journal. 29 Cong., 1 sess., pp. 340, 396, 482. 489, 520; the full 
text of this enabling act can also be found in the U. 8. Statutes at 
Large, ix, pp. 56-58. 



[232] 



First Constitutional Convention 

an overwhelming majority^ desired state govemmBnt Of 
the 14,821 votes cast, only 2,487 were against the proposed 
change. 

During the early simiimer months a census was tai;en by coun- 
ties, showing a total population of 155,277,^ exclusive of Chip- 
pewa, La Pointe, and Kachland counties. August 1,'^ Gov- 
ernor Dodge issued a proclamation calling the constitutional 
convention to meet at Madison on October 5, at the same time 
apportioning tlie number of delegates to the various counties. 
The preliminary steps for the first constitutional convention 
in Wisconsin were concluded on Septeanber 7,^ when 125 dele- 
gates were elected.'^ 

In accordance with the call of the governor the first consti- 
tutional convention convened at Madison at noon of October 5 
and proceeded to organize, Aftetr several ballots, Don A. J. 
Uphana of Milwaukee was chosen as president; La Fayette 
Kellogg of Madison, secretary; and. John Starkweather, 
sergeant-at-anns.^ Of the 125 delegates apportioned, only 
ninety-five were as yet present ;° the others, with the exception 
of Messrs. Hawes and Stockwell of Elacine, who did not attend 
at all, arrived within a few days. iSio delegate was present 
from Chippewa County. 

All the political parties of the day were represented. The 
Democratic members, the Locofooo wing predominating, con- 
trolled a large majority of the delegates, and because of their 



iWis. Hist. Soc. Proceedings, 1895, p. 158; Charles R. Tiittle, History 
of Wisconsin (Boston, 1875), p. 240. 

2 Strong, Terr. Hist, of Wis., p. 509; Tuttle, op. cit., p. 243. 

3 Milwaukee Sentinel and Gazette, Aug. 12, 1846; Strong, Ter. Hist, 
of Wis., p. 509. 

■i Madison Wisconsin Weekly Argus, Sept. 15, 1846. 

5 List of delegates may be found in Atwood and Tenney, Fathers of 
Wisconsin, pp. 29-30; Henry Casson, History of the Constitution of 
Wisconsin (Madison, 1898), p. 5. 

^Madison Democrat, Oct. 10, 1846; Journal of Council, 1846, p. 8. 

6 Strong, Terr. Hist, of Wis., p. 513. 

16 [233] 



Wisconsin Historical Society 

liberal doctrines were joined by the small number of foreign 
representatives to whom the Whigs had evinced manifest hos- 
tility/ Some of the nieml)ers were gTadiiates of Eiastern col- 
leges; nine had previously served as members of the terri- 
torial council;^ twenty-three had sat as members in the house; 
and fifty-two were destined later to become either senators or 
assemblymen in the state legislature. It is estimated that the 
average age was about thirty-five years ; William Berry, aged 
aiixty-five years, was tlie oldest; the youngest was George B'. 
Smith, aged twenty-three.^ 

A closer examination of the personnel of the convention and 
the birth and varied occupations of its members, illustrates the 
representative character of the body called to frame the new 
instnmient. At least eighty-six were born in the United 
States ; of these Xew York furnished forty-two ;* Vermont 
eighteen ; Connecticut eight ; Pennsylvania six ; ISTew Jersey 
four; Kentucky two; Virginia two; Rhode IshiTui one; Xew 
Hampshire one; M'aryland one; Maine one. Of the foreign- 
bom there were from Ireland seven ; Germiany three ; England 
one ; Jamaica one. The birthplace of sixteen was unrecorded. 
Probably twenty-five of the delegates were of Puritan ances- 
try.^ Sixty-nine were fanners, twenty-six lawyers, seven me- 
chanics, six merchants, five miners, three physicians, two lum- 
bermen, and one a miller, with five imrecorded. ISTew York 
members being greatly in a majority' their ideals were abun- 
dantly infused into the new constitution. 

A comparison of the proposed constitution, article by article, 
will be made with those of the states represented, to discover 
the sources from which the new instrument was dra^vn. The 
document opejued with a leng'thy pream]>le — a verbatim copy 

1 James S. Buck, Milwaukee under the Charter (Milwaukee, 1884), 
iii, p. 18. 

2Tenney and Atwood, Fathers of Wiscoiisin. p. 22. 
sibid., p. 150. 

*Ihid., p. 20; also Casson, History of the Constitution, p. 5. 
swis. Hist. Soc. Proceedings, 1899, p. 119. 

[234 1 



First Constitutional Convention 

of that of the ISTew York constitution, acknoi\vledging the 
grace and beneficence of God, and conchiding with reasons for 
establishing a government, similar to those adduced in the 
national constitution. 

The first article set fortli the boundary claims, previously 
discussed in congress, and petitioned for enlargement. The 
comimittee on name and boundary, of which ex-Governor Doty 
was ohairtnan, insisted on ''ancient rights" and proposed that 
the dispute be refen*ed to the United States supreme court for 
settlement.^ However, the northwest boundary question soon 
developed an exciting problem. Williain Holcomb, delegate 
from this region, had been elected to care for the inteirests of 
his constituents^ iii this regard. At first he foTight for a divi- 
sion of the state on a line dranivn from Mount Trempealeau "to 
the head-waters of the Montreal river." ^ Such a bold scheme, 
if adopted, would have robbed the state of over one^third of its 
present area ; the rich pineries of the north he proposed to have 
fomied into a state called "Superior." After a long parlia- 
mentary straggle, lasting many days,* this scheme was de- 
feated. 

Failing in this he proposed, at least, to have the fertile St. 
Croix valley become a part of the territory of Minnesota, by 
contending for a continuation of the present boundary from 
the St. Louis River to the St. Croix, until the latter reached 
the Mississippi.^ In this he was partially successful. A 
recommendation was made to congress to change tlie boundary 



1 Doty, Report on the Boundary and Name of the State ( Madison, 
1846), pp. 3, 4. 

2W. H. C. Folsom, Fifty Years in the Northioest (St. Paul, 1888), 
p. 625. 

3 William Holcomb, Report on Division of the State (Madison, 1846), 
p. 4. 

* Journal of Convention, p. 351. The vote was 35 to 68 — pp. 362, 363. 

5 Ibid., p. 444; Wis. Hist. Colls., ii, p. 489; see also map accompany- 
ing this article. 

[235] 



Wisconsin Historical Societ 



V 



in accordance with the above proviso/ Congress^ consented, 
but as the constitution was ultimately rejected the boundary 
projDOsal was likewise abrogated. 

The act of congi-ess jjrovidiug for the admission of tlie state 
was recited.^ 

In organizing the executive department the convention in- 
corporated the article almlost entirely from the New York con- 
stitution. The power was vested in a governor, elected for a 
term of two years. He was required to be a citizen of the 
United States and a qualified elector of the state. Nearly all 
of the executive powers enumerated in the constitutions of the 
northeastern states were recognized : the power to convene the 
legislature; to send to it an annual message; to act as com- 
mander-in-chief of the military and naval forces; and to exe- 
cute the laws. The governor was empowered to grant reprieves 
and pardons for all offenses, except treason and cases of im- 
peachment; he could commute sentence of death to imprison- 
ment for life; and he might in cases of conviction for treason 
suspend the sentence and report the case tO' the next legislature 
for determination. One deviation from the New York con- 
stitution w^as made — an annual salary' of $1,000 was fixed for 
the executive, which could only be increased by a constitutional 
amendment. The hard times on the frontier, the financial 
crisis of 1837 from which the nation had just emerged, and 
the farming influence, all combined in favor of low salaries.* 

Compared with the vast political, social, and economic ques- 
tions with whidi the state is now called upon to deal tlirough 
its various administrative offices, the powers of the administra- 
tive depai"tment in the proposed constitution were indeed 
meagre, but in advance of the New York idea. The sugges- 
tion seems to have c-ome from the Pennsylvania constitution 



1 Article i, constitution of 1846. 

2Wis. Hist. Colls., ii, p. 490. 

3 Article ii, constitution of 1846. 

4 Journal of Convention, pp. 226-229. 

[•236 ] 



First Constitutional Convention 

af 1838, and a great portion of its provisions in this regard 
was copied. The article provided for a secretary of state, a 
treasurer, and an attorney general. To the legislature was 
delegated the power of determining tlie salary of the secretary, 
which should not, however, exceed $1,000. 

The constitution ptrovided for a legislature, composed of two 
houses called a senate and house of representatives, whose 
sessions were to be annual. Contrary to any of the other con- 
stitutions with which this has been compared, the representa'- 
tives were to be chosen for one year and the senators for two. 
Provision was made for districting the state according to popu- 
lation; but stipulated that the "legislature shall apportion 
anew tlie representatives and senators among the several dis- 
tricts, according to the number of inhabitants," after the taking 
of each census, at the close of every ten years. Wliat later 
proved an objectionable provision was the number of legisla- 
tors to be elected — 'the house to have not less than one hundred 
twenty, and the senate never more than one^third or less than 
one^fourth of that number. 

Qualifications for membership in the legislature were ooni- 
paratively liberal: each candidate was to be a citizen of the 
United States, an elector of the district from which he was 
chosen, and a resident of the state for one year. Similar pro- 
visions are to be found in tlie Pennsylvania constitution, with 
the exception that the latter i"equired a three years' resi- 
dence. The stringency of this clause was eliminated in the 
Wisconsin constitution by the infl.uence of tlie foreign-bom 
population. Persons holding offices under the state or national 
government, excepting postmasters, were ineligible to legisla- 
tive office. 

Fearing that legislation in favor of private interests, so com- 
mon in most statesi, would creep in, the framers stipulated that 
no private or local bill should contain more than one item; 
that no official should receive extra pay for services ; that pro- 
visions for suits against the state should be made by law; and 

[237] 



Wisconsin Historical Society 

that no lottery slioiild be authorized. What were afterwards 
criticised as too cimibersome^ were the provisions that the ayes 
and noes he takeai on the final passage of all bills, and a viva 
voce vote in all legislative elections. One feature not in the 
New York constitution, but found in those of Vermont, Illi- 
nois, and Pennsylvania was the "style of the law." The 
phrase adopted was selected from either the Illinois constitution 
of 18 J S, (<r from the Connecticut instrument. 

Besides the adoption of the general New York type of state 
government, local government wag formed on the same model. ^ 
Tlie absence of populous cities in Wisconsin doubtless explains 
why no provisions Avere made for municipal government in 
the proposed constitution. 

Probably no man was so influential in shaping the policy 
of the convention in regard to the judiciary and banking sys- 
tems as Edward G. Eyan, afterward chief justice of the Wis- 
consin supreme courtu^ The articles on both these subjects 
contained original ideas which the author defended at length 
by forcible and effective argument which exhibited a high or- 
der of ability and legal research. Both of these articles proved 
to be objectionable to the voters, being denounced as toO' demo- 
cratic; yet they were the only ones for which no direct ante- 
cedents can be discovered, save the Jacksonian idea current at 
the time. 

The judicial power of the state was to be vested in the senate, 
Slitting as a court of impeachment; a supreme court; circuit 
courts; courts of probate; and justices of the peace. In ad- 
dition the legislature was given power to establish, "when it 
shall be deemed necessary, municipal and inferior courts, with 
limited civil and criminal jurisdiction." In contrast to the 
custx>m in New York, Vei'mont, Coinnecticut, and Pennsyl- 
vania — natal states of so many delegates — the proposed con- 



1 Strong, Terr. Hist, of ^\ is., p. 556. 

2 Article vi, sections 3, 9. 

3 Wis. Hist. Colls., ix, p. 452; Fathers of 'Wisconsi7i, p. 144. 

[ 238 1 



First Constitutional Convention 

stitution provided fori ;an elective judiciary. Mve judictial 
carcuits were erected whose judges sihould for "'a term of five 
years, and thereafter until the legislature shall otherwise pro- 
vide," be members of the supreme court, a majority of whom 
shall constitute a quorum.^ When necessary a regular supreme 
court was to be organized by the leg'islature." Thus the 
whole judicial power was elective. The justices of the 
supreme and circuit courts must be twenty-five years of age, 
citizens of the United States, and have been for two years resi- 
dents of the state^ The annual salary of the judge was not to 
be less than $1,500, and he could receive no other fee nor hold 
any other office of public trust. At least one term of the su- 
preme court was to be held in each judicial circuit annually. 

The supreme court, save in especially provided instances, 
was to have appellate jurisdiction only; moreover it exercised 
general superintendence and control "over all inferior com*ts." 
The circuit court was to have original jurisdiction in all mat- 
ters, civil and criminal, not other^visei pro^dded for in this con- 
stitution, also appellate jurisdiction from all inferior courts 
and tribunals. These courts were also to have the power to 
issue writs necessary to give them control over inferior courts. 
It was further provided that taxes in civil suits were applicable 
to the salaries of the judges, that testimony in equity cases 
should be taken in cases at law, and that any suitor might be 
his own attorney. These ideas were original and were freely^ 
commented on. A strong objection came from the bar gener- 
ally, as well as the state at large, to the organization of the cir- 
cuit court, which provided that "circuit judges shall inter- 
change circuits in such manner that no judge of either of said 
circuits shall hold court in any one circuit for more than one 
year in five consecutive years."* 



1 Article vii, section 5, constitution of 1846. 

2 Speech of Ryan, in Wisco7isin Argus, Jan. 5, 1847. 

3 Strong, Terr. Hist, of Wis., p. 555. 

>< Article) vii, section 12; Fathers of Wisconsin, p. 387. 

[239] 



Wisconsin Historical Society 

The article on the judiciary also provided for a county pro- 
bate court, the electors in. each county choosing a judge for a 
term of two years; for the creation of a tribunal of concilia- 
tion ;^ and for the biennial election by cities, towns, and vil- 
lages, of justices of the peace, whose jurisdiction shall l>e deter- 
mined by law. Municipal and inferior courts were to be 
provided for whenever, in the judgment of the legislature, it 
should be advisable to create them. 

The qualifications of the elector," and the provisions concern- 
ing suffrage, were almost identical with similar provisions in 
the 'New York constitution of 1821, and that of Pennsylvania 
for 1838, with the exception of the briefer residence required 
for foreigners before becoming citizens. An elector was 
to be a w^hite male citizen of the United States, twenty- 
one years of age; a w^hite person, not a citizen of the United 
States, who had declared his intention to become such ; an In- 
dian declared a citizen by law of congress; and any civilized 
person of Indian blood not a member of any tribe. An elector 
was also required to live in the district, ooam.ty, or township 
ten days preceding such election.^ The text of the article 
was slightly amended after its introduction, the three Ger- 
man delegates* succeeding in reducing the qualifications for 
foreigners to a declaration of intention ; and voting by ballot 
being substituted for a viva voce vote, as recommended by the 
committee. 

A heated debate arose over the privileges to be accorded to 
negroes. Charles M. Baker of Walworth County,'^ introduced 
a proposition providing for a separate submission to the voters 
of an article granting them the same privilege as white j>ersons. 



1 Literally copied from the New York constitution, 1846. 

2 Article viii. 

3 Speech of William H. Clark, in Madison Express. Nov. 3, 1846. 

•* Charles J. Kern, Franz Hiibschmann, and Edward H. Jannsen — 
Bruncken, "Germans in Wisconsin Politics," p. 230. 
5Wis. Hist. Soc. Proceedings. 1893, p. 118. 

[240 1 



First Constitutional Convention 

After considerable discussion it was lost by a vote of 47 to 51.^ 
However, a resolution waa afterwards adopted, providing for 
the separate subouission to the voters of an article giving col- 
ored male citizens the right to vote. It now remained for the 
voters of the state to decide the vexed question. 

An article for a strong educational system, one of the leading 
arguments for adopting a state form of government, was early 
incorporated. It created free schools, and a reference wias 
made to the lands granted by the United States f o-r the purposes 
of a university.^ Differences arose in regard to the office of 
«tate superintendent. Some favored the ISTew York system,' 
accKKrding to which the secretary of state peirformed the duties 
of superintendent. However, the majority sentiment was in 
favor of a separate department, the superintendent to be 
elected or appointed as the legislature might direct. The 
funds aeciniing from exemptions from military duty and 
hreaches of the penal laws were to be used for the establish- 
m.ent of libraries — one at least in each town and city. 

The banking article, drafted by Mt. Eyan, chaii-man of the 
committee, breathed the spirit of the Jacksonian democracy.'' 
The hostility to the United States bank was still prevalent. 
Eiyan submitted a report which after modifications was finally 
adopted and incorporated into the proposed constitution. Rad- 
ical in its intent, it prohibited the legislature from conferring 
banking privileges upon any corporation, and made it unlaiwful 
for any corporation, institution, or person within the state to 
issfue paper money in any form. It prohibited the establish- 
ment of a branch or agency of any banking institution of the 
United States government, and made it unlawful to circulate 
within the state, after 1847, any paper money issued without 



1 Strong, Terr. Hist, of Wis., p. 522. 

-Lorenzo Bevans's speech on "Schools and the School Fund," in 
Madison Express, Dec. 8, 1846. See also article ix of constitution. 
3W. C. Whitford, Education in Wisconsin, p. 31. 
4 Original report in Ryan's handwriting, in secretary of state's office. 

[241] 



Wisconsin Historical Society 

this state of any denomination less than $10, and after 1849 
of any denomination less than $20/ The design of the article 
was tx) prevent banJving privileges in any form, and to inter- 
dict entirely the nse of paper money. Prior to this period the 
country had been flooded with a depreciated currency and 
"wild-cat" bank notes, and this was intended as a solution of 
the problem. So extreme a measure^, even to a democratic 
state, was impalatable, and the proposition contributed its 
share to the final defeat of the constitution. 

The beneficial effects of ipternal improvements enjoyed by 
the West upon the completion of the Erie canal and the na- 
tional road found expression in certain provisions of the con- 
stitution. A special ct)anmittee on internal improvements was 
appointed, with Moses Meeker as chainnan, whose report with 
slight modifications was endorsed.^ Tiie state pledged itself 
t-o encourage internal improvements and to carry on the par- 
ticular works for which the United States had made grants of 
land or property. 

Other articles provided that all taxes levied in the state 
should be equal ; that the treasurer should annually, in the first 
week of January, file a statement of tlie debts and expenditures 
of the state during the preceding year ; that the limit of state 
indebtedness should be $100,000 ; and that the legislature 
should provide for an annual tax sufficient to defray the esti- 
mated expenditures of the year. This unusual caution in the 
matter of finance, taxation, and public debt was the result of 
a successful economic policy pursued during the years of ter- 
ritorial government which, when recognized, turned foreign 
immigration toward Wisconsin.^ 



1 Article x; R. M. Bashford, Early Wisconsin Banking (Madison, 
1898), p. 8; Prentiss's speech, in Wisconsi^i Democrat, Oct. 31, 1846; 
Rufus Parks's speech, in ibid.. Nov. 7, 1846. Professor Bashford kindly- 
loaned me much useful material on banking, in the form of lectures 
on that subject. 

-Journal of Convention, pp. 22, 305. 

3 Wis. Hist. Colls., xii, p. 314. 

{242 1 



First Constitutional Convention 

Tlie militia article of the constitution wa-s drawn by Gren. 
William R,. Smith,^ who was well versed on this subject, having 
been adjutant general of the teirritory in 1839.^ The state 
militia was to consist of all free abled-bodied male persons, 
residents of the state, between the ages of eighteen and forty- 
five years. Ptersons exempted by the laws of the United 
States and those having conscientious scruples against bearing 
arms wiere exempted, ^'but shuall pay an equivalent for personal 
service." It provided further for military officers and proper 
regulations for this great arm. of the public defense. 

Besides the attempted banking reform the most noteworthy 
novelty of the constitution was the provisioai securing to women 
and to debtors the exemption of a, homestead of forty acres. 
Usual as such a provision would now be in constitutions and 
statute books, it was tlien a new idea which had been suggeisted 
to the convention by an article in the Democratic Review.^ 
Da\'id Noggle speaking before the convention, poitited out that 
a similar article had been incorporated in the Texas cooistitu- 
tion of 1845, and the Sentinel and Gaz&tte called attention to 
like provisions wdiich were considered by the jSTew York consti- 
tutional convention of 1846.* Futile attempts were made so 
to amend the article as to change its intent. At last Mai^ 
shall M. Strong, tired of opposition, resig-ned his seat^ and the 
article was incorporated, although there was a strong opposing 
minority. 

The constitution contained a bill of rights of twenty-one sec- 
tions, gTianin teeing to the indjividual, am^ong other ithings, 
freedom from slavery or involuntary servitude — a, section 
copied fromi the ordinance of 1787; freedom of speech; right 
of a trial by jury; no religious tests or imprisonment for debt; 

1 Editorial in Madison Democrat. Oct. 31, 1846. 

2 Tenney and Atwood, Fathers of Wisconsin, p. 163. 

3 Strong, Terr. Hist, of Wis., p. 524; Milwaukee Sentinel and Gazette, 
Oct. 24, 1846. 

*Madison Democrat. Jan. 2, 1847. 

^Journal of Convention, p. 428; Madison Express, Dec. 7, 1847. 

[243] 



Wisconsin Historical Society 

no bills of attainder; no ex post facto laws. These sections 
were drawn from various sources — 'the Xew York constitution 
of 1821, that of Illinois of 1818, that of Pennsylvania of 1838, 
the United States constitution of 1879, and, as we have seen, 
the IsTorthwest ordinance of 1787. 

The method of amending and altering the constitution was 
cumbersome, and its opponents used that as an argument to 
defeat it Although it had been closely drafted after the JSTew 
York plan, it did not win general approval. An amendment 
passed by a two-thirds' vote of both branches of the legislature, 
having been duly published a required number of times, was to 
be submitted to the electors of the state at the next general 
election. Thus far the provision was practical. But it further 
required that the legislature should every tenth year after the 
constitution took effect, submit to the people at the next annual 
election tlie question of whether they were in favor of calling 
a convention to revise the constitution. The plan was deemed 
lumecessaiy, costly, and burdensome. 

The final work of the convention was concluded on Decem- 
ber 16,^ and the adoption or rejection of the constitution 
awaited tlie verdict of the people the following April. The 
convention had throughout been divided by factional differ- 
ences. The constitution went to tlie people, not to be judged 
in its entity, but to l^e discussed on the questions of banks, 
women's rights, exemptions, elective judiciary, and the number 
of representatives in the legislature- 

Scarcely had the convention adjourned when there arose 
bitter discontent with the proposed fundamental law.' In the 
nineteen days preceding the meeting of the tcin-itorial legisla- 
ture unmistakable opposition developed, rending parties into 
factions, and sections into hostility one to another. 

Discontent was also manifested in the legislature itself, with 
a stronger opposition sentiment in the council than in the 



1 Journal of Convention, p. 476. 
^Sentinel and Gazette. Dec. 14, 1846. 

[244 1 



First Constitutional Convention 

house. Grovernor Dkjdge submitte-d his message to the legisla- 
ture on January 5, speaking at lengtli of the convention.^ Ten 
days later, so prevalent was the uncertainty of the adoption of 
the constitution, that petitions came in from Eiock and Wal- 
worth counties asking for the passage of a law for a new con- 
vention in case the document before the people should be 
rejected." 

In the council, Miarshall M. Strong was the recognized leader 
of the opposition. Although a memiber of the constitutional 
convention he had resigiied his seat in order that he might be 
instrumental in defeating a docimient which to him seemed 
adverse to the interests of the state. He was assisted by 
Messrs. Horatio ]^. iWells of Miilwaukee, Frederick S. Lovell 
of Eacine, Alexander L. Cbllins of Madison, and others. Dur- 
ing the brief inteiwal of two months in which the territorial 
legislature was in session, about fifty petitions for a new con- 
vention were presented, coming from the more prominent 
counties and towns of tlie state ; while in tlie same interval only 
five remonstrances against this proposition wei*e received.'^ 

Meanwhile a bill purposed to aid in defeating the instru- 
ment before the people, was introduced into the legislature, 
providing for a new convention to be held in June.* Upon 
consideration of the measure Miarshall M. Strong made a bit- 
ter speech, directed against the adoption of the constitution, 
and this was extensively used as a campaign docimient. The 
house, not containing so many anti-constitutionalists, indefin- 
itely postponed the bill.^ The question, complicated as it was 
becoming, was now transferred from the legislative halls to the 
judgment of the people. 

In the meantime congress again convened in annual session, 



^Journal of Council, 1846, p. 12. 
^Ibid., p. 47. 

3 Florence E. Baker, "Bibliographical Account of the Wisconsin Con- 
stitutional Conventions," in Wis. Hist. Soc. Proceedings, 1894, p. 11. 
'* Journal of Council (bill 32 C), 1847, p. 99. 
^Journal of House, 1847, pp. 222, 223. 

[245 ] 



Wisconsin Historical Society 

and the house committee on territories reported a bill for Wis- 
oonsiin's admission into the union. The measure passed the 
house about the middle of Febiniaiy^ and was sent up to the 
senate. The session was rapidly drawing to a close, only two 
weeks remaining. Oil February 20 the bill was favorably re- 
ported fronij the judiciary committee by Senator Chester Ash- 
ley of Arkansas. It was, however, left untouched until 
jVIarch 2, two days before final adjournmentw Then, upon re- 
quest of Senator Breese of Illinois, the bill waS' called up and 
passed without debate,' This act empowered the president to 
proclaim Wisconsin a state, provided the people of the terri- 
tory adopted the constitiution. It further gave asisent to change 
the boundary as proposed by the new constitution, but only on 
condition of the adoption of that instrument. 

The people of the territory were divided over the adoption 
or rejection of the constitution. Although the Democrats had 
been supreme in the conventiom, diffeirences now existed among 
them. Because of its liberality, the constitution was upheld 
by the Locofoco wing,'^ ■\\'hile the other faction strenuously op- 
posed the articles on rights of married women and exemptions 
of property.* The Whigs generally regarded it as a Demo'- 
cratic instrument, and accused that party of having incoi-poiv 
ated a political platform into the constitution. However, their 
principal objection was due to the anti-banking clause. 

As election day approached, the campaign became more 
active. From January to April both sides continuously a^ 
sailed each other in the presis. Ai'ticles discussing the pro- 
visions of tlie constitution appeared above fictitioiis names ; 
campaign meetings sometimes ended in riot;^ anti-constitu- 
tional clubs were formed; and orators toiu-ed the territory dis- 



1 House Journal, 29 Cong., 2 sess., pp. 354, 355. 
^Cong. Globe, 29 Cong., 2 sess., p. 568. 
3 James S. Buck, Mihvaukee Under the Charter, iii, p. 18. 
"^A. M. Thomson, Political History of Wisconsin, p. 55. 
5 Andrew C. Wheeler, Chronicles of Mihvaukee (Milwaukee, 1861), 
pp. 187-189. 

[246 1 



First Constitutional Convention 

cusising the document. In Milwaukee tlie issue became involved 
with municipal politics — one candidate for mayor upholding 
the constitution,^ the other condemning it. A ward canvass 
was made of the city. Among those who labored industriously 
for its rejection were: Byron Kilboum, H. ]^. Wells, James 
HoUiday, Moses Kneeland, Rufu^s King, Solomon Juneau, 
Jo'hn II. Tweedy, and Jonathan Arnold." Among those who 
urged its adoption were: Ei. G. E-yan, I. P. Walker, W, K. 
Wilson, and G. H. Walker. 

The objectionable features of the constitution may be classi- 
fied as follows: 

1. The rights of married women. 

2. Homestead exemption clause. 

3. St. Croix boundary dispute. 

4. Number of members of the legislature. 

5. An elective judiciary. 

6. Lack of a corporation article. 

7. Salaries of state officers unalterable by the legislature. 

8. The anti-banking article. 

The article on the rights of married women was by one fac- 
tion of the Deonocrats urged as objectionable.. Recognized as 
such privileges are now, it is interesting to note that the article 
was omitted from the adopted constitution put upon the statute 
books a few years later. 

The banking clause was particularly aggravating both to the 
citizens of Milwaukee, where there were of course several use^ 
ful banks, and to the people of southwest Wisconsin, where 
four banks were then in operation.^ 

An elective judiciary system being unooimmion in that decade, 
was considered unsuitable; but reg:ardless of the opposition 
evoked it became a part of the second constitution which re- 
ceived the consent of the voters the following year. 



1/&M., p. 187. 

^Thomson, Political History of Wisconsin, p. 56. 

sBashford, "Early Banking in Wisconsin," pp. 1- 

[247] 



Wisconsin Historical Society 

Probably the most vital error was the omission of a corporaj- 
tion clause, which in our later day has become so important. 
Another was the limited appointing power of the executive; 
and a third the St. Oroix boimdary cut-off. 




Ar;,!-:,T - .. r— j 



By election day (April 5), tJie voters were well informed on 
the issues of the constitution and negro suffrage, wh,ich were 
before them for judgment. The result gave 7,664 votes for 

[248 1 



First Constitutional Convention 

negro suffrage, and 14:,615 against; and 14,119 votes for the 
constitution and 20,233 against it.^ 

A detailed examination of the vote develops interesting 
diff^erences, showing the result of inherent political ideas and 
principles. Southwestern Wisconsin, early settled by people 
from the Southern states, voted against negro suffrage, as did 
the Germans who j)redominated along the Michigan lakeshore. 
It appears that the antagonism, of the Germans had been 
aroused because an attempt had been made in the convention 
to couple the vote on foreign with that on negTO suffrage." The 
whole of south-central Wisconsin, settled by i^ew England and 
l^ew York immigrants, cast almost a solid vote in favor of ex- 
tending the franchise to negroes." 

The vote on the oonstitution is more complicated. Anxious 
to join the new territory of Minnesota, St. Croix County voted 
for a constitution which was pledged to grant her this privilege. 
The old French-Canadian settlements in Brown Cbunty, desir- 
ous of any sort of government that would afford them pro- 
tection, voted for adoption; while all the rest of the territory, 
with the exception of Iowa and Washington counties, rejected 
the proposed constitution.* Washington was settled mostly by 
foreigners who were democratic in tendency, and they natr 
urally voted for adoption of an instrument so nearly according 
with their views. Iowa County, however, requires a different 
explanation. The vote therein was almost evenly divided. 
The bulk of the settlement wais in the southern part of the 
county, and their vote overbalanced that of the northern towns. 
Although the newspapers of the time give but meagre informa- 
tion on the subject, yet the result in this county seems to have 
been related to the educational views of the inhabitants and 
their strong democratic sentiments. This same county cast a 



1 Journal of Council (1847), p. 62; Baker, "Elective Franchise," p. 7; 
Tenney and Atwood, Fathers of Wisconsin, p. 367. 

2 Baker, "'Elective Franchise," p. 10. 

3 R. G. Thwaites, Story of Wisconsin (Boston, 1890), p. 235. 

4 See accompanying map illustrating the vote. 

[ 249 ] 



Wisconsin Historical Society 

solid anti-Free Soil vote in 1848, and again in 1853.^ The en- 
thusiastic minecrs gave a strong vote for tlie constitution, unin- 
fluenced by the discussion attending the campaign. 




Majority for Constitution 

AGAINST 

St Croix BOUNiftKY contcntion -x-x 
Calumet, no returns 



The constitution had been defeated, although it is conceded 
that had the articles been submitted separately, all, Avith the 
possible exception of the banking clause, would have received 
popular sanction. But even though the vote was lost, the 



1 Theodore C. Smith, "Free Soil Party in Wisconsin," in Wis. Hist. 
Soc. Proceedings, 1894, p. 161. 

[ 250 ] 



First Constitutional Convention 

efforts of the framers had not been m vaiiL The people "wiecre 
nofW fully aroused to an appreciation of the benefits acoomr 
panying statehood. Although the election had passed, the 
effect of the campaign over the first constitution lingered in 
politics for years/ In the autumn of 184Y, candidate© for 
congress tacitly used, this as an issue; the result was that the 
Whig candidate, John H. Tweedy, carried the state. 

The constitution adopted a year later was almost an exact 
counterpart^ of the one rejected, and legislation under it haa 
advanced in the direction of what was in the first document 
denounced as "radical." Over half a century has passed, and 
with comparatively few amendments the new constitution has 
stood the testt of time. 



1 Tenney and Atwood, Fathers of Wisconsin, p. 19. 
a/bid, p. 389. 



[251] 



c 



